Lancel v. John L. Benwell, Inc.

STURTEVANT, J.

This is an appeal from an order refusing to change the place of trial. The defendants made two motions. The first motion was made under section 395 of the Code of Civil Procedure. That motion was denied, the defendants answered and thereafter the defendants made a motion to change the place of trial from Alameda County to Los Angeles County to promote the convenience of witnesses and the ends of justice. (Code Civ. Proe., see. 397, subd. 3.) That motion was also denied and from that order the defend

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ants have appealed under section 953a of the Code of Civil Procedure.

In passing on such a motion it is of primary importance to ascertain what the issues are, and having done so, it will then readily appear what witnesses will be necessary for the parties to present their respective cases. An examination of the pleadings discloses that there was hardly a single issue presented. Nearly every allegation in the plaintiff's amended complaint was admitted because the defendants had failed to interpose any proper denials.

(Fogarty

v.

Fogarty,

129 Cal. 46, 50 [61 Pac. 570];

Nolan

v.

Hentig,

138 Cal. 281, 283 [71 Pac. 440];

Scott

v.

Superior Sunset Oil Co.,

144 Cal. 140, 142 [77 Pac. 817].) If the trial judge made no further examination of the record and for the above reasons denied the motion, his ruling would not have been erroneous.

When we go further into the record we find additional support for the ruling made by the trial court. The appellants produced as a part of their showing on the motion the affidavit of John L. Benwell. He enumerates a large number of witnesses, perhaps one hundred, whom the defendants intend to call. He then proceeds to segregate of that number thirty or thereabouts by whom the defendants expect to prove that the “John L. Benwell No. 3 Oil Well was owned in fee simple by the John L. Benwell, Inc., a corporation; that more than $50,000 was expended by the defendants in drilling said well; that all of the money received from the sale of Certificates for Eoyalty Assignments, together with approximately $40,000 additional, was expended on said well in the development thereof, and that all of said witnesses are familiar with the actual working conditions, work performed, and money expended on said property.” In another place in the affidavit it is averred that all title papers are of record in the recorder’s office in Los Angeles and said records will be introduced in evidence. In another place it is averred that H. E. Foster had complete charge of the drilling operations and of the amount of money expended in drilling. If such latter statements are true, it is patent that the forty witnesses designated were cumulative and not necessary.